IN THE EYES OF THE CHILD: EXPLORING THE INTRICACIES OF DOMESTIC VIOLENCE, CHILD ABUSE, PSYCHOLOGY AND EVIDENCE IN CHILD LAW

  1. Identifying Family and Domestic Violence:
    • What is family and domestic violence?
    • The most common community definition in Queensland is:
      Domestic violence occurs when one person in an intimate relationship behaves in a way that causes fear or harm to another perso       (Dept Child Safety Practice Document, Nov. 2006)
    • Relevant Queensland legislation includes The Domestic and Family Violence Protection Act 1989 (the DFV Act), the Child Protection Act 1999 (the CPA) and the Criminal Code.
    • The DFV Act at section 11 indicates that violence includes the following:
      • wilful injury – for example, punching, hitting, slapping or choking;
      • wilful damage to the other person’s property – for example, breaking possessions, punching holes in walls or injuring pets;
      • intimidation or harassment of the other person – for example, following/stalking, repeatedly telephoning or threatening the person
      • indecent behaviour towards the other person without consent – for example, forcing them to engage in sexual activity, or unwanted sexual contact; or
      • a threat to commit one of the acts mentioned above towards the other
      • S 11(2) provides that the person committing the domestic violence need not personally commit the act or threaten to commit it.
    • The CPA:
      • Does not define family and domestic violence
      • Defines “harm to a child” as any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
      • States that such harm can be caused by physical, psychological or emotional abuse or neglect OR sexual abuse or exploitation.
      • States that a child in need of protection is a child who has suffered harm, is suffering harm, or is at unacceptable risk of suffering harm AND does not have a parent able and willing to protect the child from the harm.
    • The relevant Federal Legislation is the Family Law Act 1975 as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (the Shared Parenting Act).
      The provisions include a new definition of family violence in s 4(1) as follows:
      Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
      Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
      This requirement of “reasonableness” imports an objective element.
    • One of the objects of the legislation is stated in s 60B(1)(b) as protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Under s 60CC(2)(b) this is also a primary consideration for the court to consider in determining what is in the child’s best interests.
    • The presumption of equal shared parental responsibility is pivotal to the legislation but under s 61DA(2) the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
      1. abuse of the child or another child who, at the time, was a member of the parents’ family (or that other person’s family); or
      2. family violence.

      For a discussion of the domestic violence implications of the new legislation and it’s interface with relevant state legislation we refer you to a paper delivered by Queensland Chief Magistrate Judge Marshall Irwin at the Queensland Family Law Residential 2006 which we have included in the Reference List.

    • Is physical abuse the only type of domestic and family violence?
      • Family and domestic violence is taken to include all of the following:(Dept Child Safety Practice Document, Nov. 2006)
      • Physical abuse
      • Sexual abuse
      • Verbal and emotional abuse
      • Spiritual or cultural abuse
      • Social abuse
      • Economic or financial abuse
      • Stalking (Criminal Code of Queensland, s 132).
    • Are there different types of intimate partner violence? (Kelly and Johnson, 2008)
      • Coercive Controlling Violence
      • Violent Resistance
      • Situational Couple Violence
      • Separation Instigated Violence
    • Why is it important to differentiate these in custody and access disputes? (Kelly and Johnson, 2008)
      • Different levels of risk to children
      • Some types more likely to be sustained long term after separation than others
      • Some, are likely to be lethal to victims than others
      • Victims of coercive controlling violence may be too fearful to be honest about the level of violence.
      • Allegations of child abuse almost always accompanied by allegations of spousal violence.
      • However, research in its violence.
      • One study differentiated between different types of intimate partner violence in custody and access disputes (Johnston and Campbell, 1993).
      • Most research into the connection between intimate partner violence and children’s adjustment has involved the more serious forms of violence (generally coercive controlling violence).
    • Describe Coercive Controlling Violence (Kelly and Johnson, 2008)
      • Pattern of power and control – Power and Control Wheel (Pence and Paymar, 1993)
      • Various combinations of intimidation, emotional abuse, isolation, minimising, denying and blaming, use of children, asserting male privilege, economic abuse and coercion and threats.
      • Perpetrators misogynistic.
      • Not necessarily any physical violence if other techniques effective.
      • Some say the law should focus on the power and control rather than the level of physical abuse (Stark, 2007).
      • Risk of escalation to physical violence always present.
      • Type most commonly seen in legal settings.
      • Perpetrators mainly men in heterosexual relationships (Johnson, 2006).
      • Female perpetrators do exist in a small minority of cases.
      • For women “use of the system” substitutes for “assertion of male privilege”.
      • When physical violence present more severe than in other forms of FDV.
      • High likelihood of injury including severe injury and death and sexual violence common.
      • Homicide rates higher for female victims (not male victims) after separation than before.
      • Coercive control with or without physical violence a major risk factor for continued and increased violence.
      • Psychological impact (fear and anxiety, loss of self esteem, depression and post traumatic stress) often reported to be worse than physical.
    • Describe Violent Resistance (Kelly and Johnson, 2008)
      • Sometimes meets criteria to be called “self defence”.
      • Mostly perpetrated by females.
      • Women who defend themselves physically twice as likely to be injured (Bachman and Carmody, 1994)
      • Women who kill their violent partners are no different from those who have not killed their partners in many respects but are more likely to have been sexually abused and repetitively, to have been suicidal and to have tried unsuccessfully to leave (Browne, 1987).
    • What is Situational Couple Violence? (Kelly and Johnson, 2008)
      • Most common type
      • Perpetrators both men and women
      • Not based on power and control.
      • Occasional escalation of arguments into physical violence.
      • More minor forms of violence than coercive controlling violence (eg slapping, pushing, shoving)..
      • Male perpetrators not more misogynistic than nonviolent men (Holtzworth-Munroe et al, 2000).
      • Emotional abuse and jealousy not chronic as with coercive controlling violence (Leone et al, 2004)
      • Physical injuries infrequent
      • Higher rates with teenagers and young adults
      • Women more likely to be perpetrators in younger group but otherwise there is gender symmetry
      • Violence more likely to stop after separation than with coercive controlling violence
      • Can escalate to severe assaults with serious injuries at times
      • Frequency predicts higher levels of health and psychological problems
    • What about Separation Instigated Violence? (Kelly and Johnson, 2008)
      • No prior history in relationship or other settings
      • Gender symmetry
      • Uncharacteristic acts of violence
      • Triggered by separation trauma and loss of psychological control
      • Limited number of episodes
      • Mild to more severe forms of violence
      • Perpetrator more likely to be the rejected partner
      • Protection orders likely to result in compliance
      • Risk to victims significantly less than for coercive controlling violence
    • What is the Cycle of violence? (Dept Child Safety Practice Document, Nov. 2006)
      • First referred to in 1979
      • Describes cyclical nature of FDV (particularly coercive controlling violence)
      • Build up of tension over variable periods of time
      • Perpetrators use aggression and violence as stand over tactics – most dangerous and debilitating time for victims
      • An explosion may be brief or escalate over hours and is not necessarily an indicator of loss of control. It often occurs within the home with injuries not visible.
      • There may then be a period of remorse and even guilt over injuries and victims will often believe promises to not do it again.
      • The pursuit phase is based on the perpetrator’s efforts to win back the love and affection of their partner and family with gifts and manipulation and if unsuccessful there may be further violence at this stage, the most dangerous stage, especially if separation occurs.
      • The honeymoon phase is reached when the pursuit has been successful and things look good for a time but there is usually a denial of the previous abuse and intervention of outside bodies (even through DVOs) is often strenuously resisted. As the perpetrator’s power increases, the build up phase commences again.
    • What is the Continuum of Violence? (Dept Child Safety Practice Document, Nov. 2006)
      • Describes the phenomenon of escalation of certain types of violence over time
      • Physical violence can escalate from slapping to throwing objects to using weapons to homicide and / or suicide.
      • Verbal and emotional violence can escalate from name calling to criticism to yelling to humiliation to suicide of the victim.
      • Sexual abuse can escalate from unwanted touching to unfaithfulness, to hurtful sex, exposure to STDs and to rape.
    • What is the perpetrator gender debate? (Kelly and Johnson, 2008; Dept Child Safety Practice Document, Nov. 2006)
      • 90% of all reported FDV is committed by men against women.
      • Women do commit violence in heterosexual and same sex relationships.
      • Men’s physical violence towards women is more severe and more likely to cause serious injury than that by women towards men.
      • Women are more likely to be killed by current and former partners than anyone else and men tend to give desertion and ending the relationship as reasons.
      • Women who kill their partners have a history of violence in the relationship in more than 70% of cases.
      • Women’s violence more likely in self defence than men’s.
      • Men’s violence towards women is more likely to cause women fear and intimidation.
      • Women’s violence towards men is more likely to cause anger.
    • What do we know about the presence of children in the context of such violence? (Dept Child Safety Practice Document, Nov. 2006)
      • Qld Domestic Violence Task force research in 1988 → Children in 88% of households of 856 callers to a Qld DV survey
      • 1996 Australian Bureau of Statistics survey → 38.3% of female victims said children witnessed the violence
      • More recently the percentage was 5%
      • Over all studies, children live in 30-60% of families where FDV is present
    • Is there an interface between domestic and family violence and harm to children? (Dept Child Safety Practice Document, Nov. 2006)
      • 1988 research → In households where children were witnessing FDV:
        • 68% suffered physical abuse
        • 70% suffered emotional abuse
        • 8% suffered sexual abuse
      • 1988 research → 64% of FDV perpetrators witnessed DV as children
      • Suspected Child Abuse and Neglect (SCAN) data in Qld from May to October 2006 → 34% of the 5374 children referred to SCAN teams were referred as they were at significant risk of harm arising from a domestic and family violence incident.
    • Are there indicators we can look for in parents when we suspect FDV in a home or relationship? (Dept Child Safety Practice Document, Nov. 2006)
      • Repeated injuries
      • Inconsistent explanations of injuries
      • Acute anxiety
      • Social isolation
      • Financial deprivation
      • Concentrated focus on pleasing the partner
      • Frequent reference to partner’s anger or temper
      • Terror or reluctance to speak to those in authority
      • Partner attends all appointments
      • Partner responds to all questions
      • Frequent fleeing from home
      • Depression/suicidal ideation, gestures or attempts
      • Excessive alcohol or drug use
      • Partner jealously accusing of infidelity
    • High risk situations for FDV for victims and perpetrators alike include (Dept Child Safety Practice Document, Nov. 2006)
      • Family history of violence
      • Low self esteem
      • High dependence on partner
      • Rigid traditional ideas about gender roles
      • Mental illness
      • Personality disorder
      • Work related and other types of social stressors (stress overload)
      • Relationship conflict inside and outside the specific relationship
      • Violence which begins at a significant point in the relationship – eg just after marriage / commitment or when victim pregnant
      • When there are young children in the home
      • Geographical isolation
      • Community acceptance of violence – violence against women or children reflects broader social patterns of power and gender relations
      • Association with violent peer group
      • Cultural myth which idealises family life and keeps FDV behind closed doors
      • The idealisation of privacy and the conspiracy of silence
    • Can different forms of violence occur simultaneously within the same family?
      • The research (Kelly and Johnson 2008) is starting to point to there being several different groups of people each of which has a greater propensity for a particular type of intimate partner violence.
      • However, research is in its relative infancy and there is no doubt that certain events increase the risk of all types of intimate partner violence – eg separation and discovery of unfaithfulness.
  1. The Developing Child, Trauma and Conflict
    • Research indicates that there can be significant and long-term negative effects for the child who witnesses domestic violence (Bancroft and Silverman, 2004 ; Graham-Bermann and Edleson; 2001; Fantuzzo and Mohr, 1999).
    • Are the effects of parental violence greater for child witnesses than the effects of high conflict without actual violence?
      • Violence has been found to be significantly more destructive to children’s adjustment than high levels of parental conflict (McNeil and Amato)
    • Do the effects of different types of parental violence impact to different degrees on child witnesses?
      • Early research results suggested exposure to Coercive Controlling Violence (the most severe and violent form of Family and Domestic Violence ) produces more severe adjustment problems in children than either Situational Couple Violence or Separation-Instigated Violence.
      • Boys exposed to Coercive Controlling Violence were significantly more symptomatic than boys in families with Situational Couple Violence and boys in families with only Separation Instigated Violence or no violence at all were the least symptomatic. (Johnston, J R, 1995).
    • What are some indicators of exposure to Family and Domestic Violence (FDV) in children? (Dept Child Safety Practice Document, Nov. 2006).
      • Both short and long term impacts
      • Emotional disturbance (internalised effects)
      • Behavioural disturbance (externalised or acting out effects)
      • Cognitive problems (internalised effects)
    • Are there different negative impacts on children depending on their level of maturity and development? (Dept Child Safety Practice Document, Nov. 2006; Lieberman and Van Horn, 1998; Ayoub, Deutsch and Maraganore, 1999; Jouriles et al, 1998).
    • What are the common impacts of FDV on unborn children and infants?
      • Miscarriage
      • Pregnancy termination
      • Still birth
      • Premature birth
      • Low birth weight
      • Poor health
      • Developmental delay
      • Poor sleeping habits
      • Irritability – eg, excessive screaming
      • Excessive reactivity including a chronic startle reflex or crying or screaming when voices are raised
      • Feeding problems and failure to thrive
      • Difficulty attaching to adult carers – insecure or disorganised attachment patterns.
    • Harm to infants in violent homes can result from:
      • Holding infant as a shield
      • Incidental injury such as hitting infant with flying objects or misplaced blows
      • Intentional physical harm to infant for example to try to stop excessive crying
      • Infant sensing negative emotional signals from carers – such as distress, depression, fear and / or anger
    • What are the common impacts of FDV on three year olds?
      • Boys likely to exert control by playing aggressively and hitting, biting, screaming and hair pulling
      • Girls more likely to internalise stress and to cling, become anxious, withdrawn, passive and overly compliant.
    • What are the common impacts of FDV on preschoolers (four to five year olds)?
      • Problems making friends
      • Difficulty trusting adults
      • Social withdrawal
      • React to conflict with withdrawal or aggression
      • Cowering at raised voices
      • Act out violence in play
      • Bullying behaviour
      • Taking the blame for others
    • What are the common impacts of FDV on primary school age children?
      • Use of violence to “resolve” conflict seen as acceptable
      • Bullying behaviour
      • Although they have the skills to express their fears of violence, they may lack the trust in others to do so
      • Problems with concentration
      • Academic difficulties
      • Avoidance of going home
      • Running away from home
      • Mental health problems – eg depression, withdrawal and anxiety
    • What are the common impacts of FDV on adolescents?
      • Mental illness
      • Suicidal ideation and suicide
      • Aggression
      • Anti-social / criminal behaviours
      • Running away from home
      • Homelessness
      • Truancy / Early school leaving
      • Drug and alcohol abuse and addiction
      • Boys often model father’s behaviour and abuse mothers / sisters / other females
      • Girls vulnerable to developing violent relationships
    • “Adaptive” roles adopted by children in violent families (Dept Child Safety Practice Document, Nov. 2006):
      • The hero
      • The scapegoat
      • The clown
      • The parent
      • The protector
      • Alignment with the perpetrator
    • What does the term “complex trauma” mean in the context of child and adolescent development? (van der Kolk, 2005).
      • Multiple, chronic and prolonged developmentally adverse traumatic events
      • Events mostly interpersonal (eg sexual or physical abuse, war, community violence and witnessing domestic violence)
      • Early life onset
      • Often occurs within the caregiving system
      • Results in pervasive negative effects on the development of the brain – developmental trauma disorder
    • What features are significantly more likely to be seen in adults 50 years after adverse (traumatic) and chronic or repetitive childhood experiences? (Kaiser in van der Kolk, 2005).
      • Depression
      • Suicide attempts
      • Alcoholism
      • Drug abuse
      • Sexual promiscuity
      • Domestic violence
      • Cigarette smoking
      • Obesity
      • Physical inactivity
      • STDs
      • Heart disease
      • Cancer
      • Stroke
      • Diabetes
      • Skeletal fractures
      • Liver disease
    • What are some social consequences of developmental trauma? (Ford in van der Kolk, B, 2005)
      • Increased use of medical, correctional, social and mental health services;
      • Almost the entire criminal population are victims of severe chronic childhood trauma/neglect;
      • Physical abuse and neglect associated with high rates of arrest for violent offences;
      • 75% of perpetrators of child sexual abuse report sexual abuse as children.
  1. Examining Allegations of Family Violence in Child Proceedings and Assessing Unacceptable Levels of Risk in Child Sexual Abuse:
    • What are some risks in assessing and deciding children’s issues where FDV alleged:
      • The more articulate and apparently better functioning party may be the perpetrator
      • Women and child victims of FDV may be in greater danger after separation.
      • Time with children gives perpetrators the opportunity to perpetuate and escalate violence. Remember not all actual violence and abuse can be substantiated (Maloney, L et al, 2007).
      • A small minority of unfounded child abuse allegations are due to deliberate or malicious fabrication (Brown, T, 2003).
      • Mistrust around separation as well as the support of family, friends and ill informed professionals contribute to false beliefs of child abuse (Johnston and Roseby, 1997).
      • The legal and social advantages of claiming FDV can encourage fabrication , exaggeration and biased recall (White, 2007) as well as false denials and minimisation by perpetrators (Jaffe et al, 2003; Johnston, Lee et al, 2005; Shaffer and Bala, 2003).
      • In some cases, the vulnerability of the accuser is so great that their rage at being rejected can result in alienation of the child from the other party and in the worst cases in abduction and / or murder of the children and the other parent / victim and / or suicide of the rejected partner / separation.
      • 50-75% of FDV allegations and 22-52% of child abuse allegations in family law matters can be substantiated in some way (Bala and Schuman, 1999; Brown, 2003).
    • How is unacceptable risk defined? (Carmody, The Hon T, 2005)
      • Not a clear formula – even for the Family Court
      • Different standard of proof from the criminal courts
      • Not necessarily even based on “the balance of probabilities”
      • At times it seems to be based on the concept of “possibility” rather than “probability”
      • In 2005 The Hon Tim Carmody (then Justice Carmody) argued that:
        (unacceptable risk) is founded on assumptions, conjecture, intuition, belief, suspicion and even guesswork. It is a forecast of what might be, based on what might have been and other omens.
      • Carmody suggests several radical and controversial mechanisms of reform to the current processes in making decisions about allegations of child sexual abuse in the context of the Family Law Act. One of these is that alleged child victims’ evidence is heard directly by judges, giving due recognition to:
        their (victims’) special vulnerabilities and need for special measures while at the same time respecting the rights of the accused party to defend him or herself effectively.
      • This is a constantly evolving area and we can expect that as the body of research evidence on children’s evidence and the assessment of sexual abuse in a family law context increases, the method of assessment of unacceptable risk by the courts will also change.
  1. How Viable is Children’s Evidence?
    • It depends on a number of factors.
      • How old is the child making the disclosure?
      • In what context was the disclosure made?
      • Who heard the first disclosure?
      • How many times was the child interviewed?
      • What were the qualifications and experience of the interviewer?
      • What type of interview elicited the disclosure?
      • Is there corroborating and independent evidence? How reliable is it?
      • Were there any retractions? Sequence? Why?
      • Has “accommodation” by the victim been considered?
      • Was there a motive on the part of the child or any other person for making false allegations?
    • The research evidence is(For example see, Bridges, C E; Ceci, S J and Bruck, M, 1993; Loftus, E F and Davies (1984); London, K, Bruck, M, Ceci, S J & Shuman, D W, 2005; Lyon, TD, 2001 & 2002; Malloy, LC, Lyon, TD & Quas, J A, 2007; Robinson, B, 2008; Salter, AC, 2003; London, K, Bruck, M, Ceci, S J & Shuman, D W, 2005.
    • The main thing is to get expert help with this most difficult of family law areas. This is no other issue which warrants more of an “each case on its merits” approach.
    • Children’s views need to be heard and considered but remember:
      • Give their views appropriate weight for age and more particularly level of maturity, intelligence, level of understanding and suggestibility.
      • Ethical issues militate against conducting research focused on children who have been abused or who have witnessed violence.
      • Much of the evidence about children’s memory and eye witness testimony has not involved abused children.
      • Children don’t always tell the truth – for all sorts of reasons.
      • Adult interference can affect the validity of children’s evidence and alliances with one or the other parent can affect the validity of their
      • A child’s inherent drive for survival can affect the validity of their evidence.
      • Lack of trust, emotional disturbance and mental illness can affect the validity of their evidence.
      • The qualifications, experience and “agenda” of the interviewer is a vital piece of evidence.
      • The context of the disclosure is highly significant.
      • The nature of the “first disclosure” is highly significant.

What can Governments, the courts and practitioners do to minimize risk and support victims of abuse

  • Need to empower parties who have experienced violence-need to encourage parties subjected to violence to make their own choices and identify their own goals
  • Need to prioritise the safety of women and children
  • Need to acknowledge the fear that women and children feel in the face of violence is real and needs to be taken seriously
  • Need to acknowledge that society and women themselves can minimise the seriousness of violence
  • Need to treat parties who have experienced violence with respect and sensitivity
  • Try at all times to identify the existence and details of any domestic violence or domestic violence orders or breaches of those orders
  • Need to acknowledge that violence is a crime whether it occurs in public or in private
  • Importance of the appointment of an Independent Children’s Lawyer to gather independent professional evidence regarding the possible incidence of violence in the home and the impact of the violence on the child
  • Be aware of referral options
  • Actively involve a woman or victim of domestic violence to assess her own legal needs and to have control and make decisions about his or her future
  • Need not to be judgmental
  • Consider the parties own risk assessment to ascertain whether they are possibly playing down the risk of domestic violence
  1. Is it Within the Child’s Best interests? – Dealing with Limitations of Time and Alleviating the Pressure on Parents to Consent:
    • When negotiating resolution of children’s issues remember when concerned about the safety of a child or adult that although settlement is generally preferable to litigation, you don’t have to settle the matter there and then and you can:
      • Request appointment of an Independent Children’s Lawyer.
      • Commission a family report.
      • Commission a child inclusive mediation with the assistance of a child consultant.
      • Make a notification to DOCS.
      • Seek collateral and independent information – subpoenaed medical (especially mental health), police, Department of Child Safety and Corrective Services documents.
      • Read third party statements by employers, neighbours and the like.
      • Formally request orders for assessment of personality and mental health of both the alleged perpetrator and victim/s – by psychologist and/or psychiatrist.
      • Prepare a chronology which documents allegations in the context of court proceedings.
      • Consider the social context of the allegations – eg reasons genuine disclosure could be delayed or motivation for erroneous disclosure.
      • Have the child/ren psychologically assessed.
      • Have older siblings, half siblings and step siblings interviewed / assessed.
      • Recommend parallel parenting (no contact between parents).
      • Recommend seeking Domestic Violence Orders.
      • If change of living arrangements likely and risk high ask for orders for the child to be cared for in the court child minding facility at the time when the orders are handed down.
      • Remember, “Above all else do no harm”.
    • When time is of the essence consider interim safety measures:
      • Time with child/ren supervised or partly supervised and partly unsupervised
      • Exchanges supervised
      • Notification of concerns to Department of Child Safety
      • Seeking of police intervention in a safety crisis
      • Contacting a responsible relative
      • As last resort, suspending child/ren’s time with parent/other until further investigation conducted

(Jaffe, P, Johnston, J, Crooks, C & Bala, N, 2006) Dated: 1 June 2009
Dated: 1 June 2009

Denise M. Britton
Clinical Psychologist
Clinical Psychologist

Michael J Emerson
Accredited Family Law Specialist
Emerson Family Law

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